Commercial Litigation and Dispute Resolution Blog

As is frequently noted in the press, B.C.’s Director of Civil Forfeiture is very aggressive in pursuing forfeiture in all sorts of cases, often without opposition. Occasionally, however, the court steps in to curtail this enthusiasm. One such interesting case took place recently.

Jason Dery, a 40 year old “automotive collision repair technician”, has a terrible driving record. He also owned several Ducati motorcycles, including a 2008 Ducati 1098 motorcycle. He had amassed 39 infractions under the Motor Vehicle Act, including three excessive speeding tickets on the Ducati 1098. His license was suspended in 2008 for five months. He had received five 24-hour driving prohibitions. On July 11, 2011, he was caught riding his Ducati 1098 at speeds above 200 kmh in a 60 kmh zone. Mr. Dery was caught, arrested and charged with dangerous driving under the Criminal Code. For unexplained reasons, however, that charge was ultimately stayed.

Despite that, the Director commenced a legal proceeding in 2013 seeking the forfeiture of the Ducati 1098, arguing that it was “an instrument of unlawful activity” used to commit driving offences. Given Mr. Dery’s past record, it was probable that he would he would speed in the future.

In a victory for the little guy, the Court rejected the Director’s application. Noting that the Director had the onus of proof to establish that the Ducati was an instrument of unlawful activity, the Court noted that while Mr. Dery’s driving record was bad, the Ducati had only been involved in four speeding offences. Other than the speeding, there was no evidence that Mr. Dery was acting in a dangerous way when he was caught. There was also no evidence that pedestrians or other vehicles had been endangered by Mr. Dery. The Director had not led any evidence that Mr. Dery’s conduct was likely to cause serious bodily harm to anyone. As a result, the Court found that “the act of speeding in excess of a posted speed limit alone should not lead to the forfeiture of a motor vehicle”.

The Director argued that even though the dangerous driving charge had been stayed, the Court ought to treat Mr. Dery’s behaviour in July 2011 as a criminal offence. The Criminal Code defines the offence of dangerous driving as follows:

249(1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

The problem for the Director was that there was no evidence before the Court about the circumstances surrounding Mr. Dery’s driving, the condition and use of the road, the amount of traffic and the like. Mr. Dery gave evidence that the road was long and straight and its surface dry. There were no pedestrians or vehicles on the road and the Ducati was in “perfect working condition”. Based on this, the Court found, even on a balance of probabilities, that there was insufficient evidence to find the offence of dangerous driving. Excessive speed alone does not necessarily amount to dangerous driving. It all depends on the factual context.

The Court also noted that since July 2011 (the offence date), Mr. Dery had not received any other speeding tickets. This led to the conclusion that Mr. Dery “has now been sufficiently penalized for his past behaviour to be deterred from such behaviour in the future.”

While the Director lost this case, it is likely he will present better evidence the next time such circumstances arise. The absence of a criminal conviction in this case probably saved Mr. Dery’s Ducati. However, just because there has not been a criminal conviction does not mean that, with the right evidence, a motor vehicle cannot be the subject of a successful forfeiture application. It is best not to speed or otherwise contravene the rules of the road. If you do, you may nonetheless be able to defeat any forfeiture claim by the Director. However, much will turn on the evidence that is put before the Court.

Peter is a litigator with a wide range of experience, practising for over 26 years in Vancouver. For a number of years he practised criminal law before resuming civil and commercial litigation, including claims involving ...

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